Abstract
According to Hartian positivists, law is a conventional practice that requires a convergence that includes not only the regularity of behavior but also of certain beliefs and attitudes. It is easy to conclude that in this framework the meaning of terms is determined by shared criteria that are transparent to all parties, a form of semantic descriptivism. This, at least, is the way in which Dworkin and his followers have interpreted Hart’s positivist stance. The problem is that disagreements often arise on how to interpret the words of the law, and this fact seems to conflict with the emphasis of positivism on the idea of agreement, or so it is argued. If the meaning of legal terms depends on shared criteria, why do individuals disagree? And if they disagree, what does their disagreement consist in?
The discussion about how to account for interpretive disagreement can be seen as a discussion about how to account for the meaning of terms, and hence as a discussion about what kind of theory of meaning explains the existence of disagreement and the grounds for its resolution. In some cases a descriptivist approach to semantics seems to be correct, whereas other cases seem to speak in favor of non-descriptivist theories of reference.
In this work we will examine critically how two competing approaches to meaning account for disagreements. We will argue that Hart’s conventionalist stance does not commit him to descriptivism. That non-descriptivist theories of reference, properly understood, can account for a vast array of cases of interpretive disagreement; that an account of different kinds of disagreement can be provided from a conventionalist perspective within the framework of non-descriptivist theories of reference, and hence that the dispute between Dworkinians and Hartians does not depend on Hart’s commitment to one or another semantic theory. We argue that both in and out of the legal context, a host of non-semantic considerations have to be taken into account in the adjudication of disputes.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
- 2.
- 3.
There is an important difference, often missed, between interpretive disagreements, disagreements about the concept of law and disagreements about the sources of the law, among others. Here we will analyze only interpretive disagreements, that is, disagreements about the content of the law.
- 4.
Descriptivism finds its inspiration in the semantic theories of Gottlob Frege and Bertrand Russell. Russell (1910–1911 and other works) explicitly defended that referential terms such as proper names are abbreviations of definite descriptions. Frege’s commitment to descriptivism is debatable. According to Frege (1892) what determines the reference of expressions is a sense, conceptual material grasped by speakers that constitutes a mode of presentation of the reference. Nevertheless, traditionally a substantial amount of Fregean followers have cashed out Frege’s stance as a form of descriptivism.
- 5.
John Searle (1958) was the prime proponent of the so called ‘cluster theory’ according to which the referent of a use of a name is the individual that satisfies a sufficient number of the descriptive information socially connected with the name.
- 6.
After Devitt and Sterelny (1999), the argument that speakers refer in the absence of uniquely identifying information is also known as the ignorance argument, and the argument that they refer but not to the individual that satisfies the description they associate is known as the error argument.
- 7.
Except perhaps figuratively, as when Ruth Barcan Marcus famously characterized names as ‘the long finger of ostension’. See Marcus (1985/1956).
- 8.
In fact, we may discover that the individual we have been calling ‘Ben’ was not the individual the name introducer did in fact ostend originally. And we may discover that the description used to introduce ‘Arcturus’ applies to something else. As long as a practice has been established, those discoveries need not force any change in usage.
- 9.
See Almog (1984) for discussion.
- 10.
The chain of communication picture is often presented as the causal theory of reference. The term is misleading in more than one way. First, because it is not a theory of reference. The chain of communication leads back from use to use to the introduction of a name, the act in which reference is established. The chain does not itself establish reference. Reference has to be there for the transmission in the chain to occur. Second, because the role of causation in the picture is far from clear. In fact, Kripke and Donnellan stress the social character of the picture, but they often do not even use the word ‘causal’ in describing it. It was Michael Devitt (1981) who incorporated the picture into a causal theory of reference establishment and transmission.
- 11.
Just to forestall some confusions, obviously we could have used the word ‘water’ to refer to some other substance. But in our discussion about meaning, the focus is on what our words do mean, and on how they are in fact used, not on what they could have meant, or referred to.
- 12.
And which criteria of similarity are ultimately relevant in classification depends on all kinds of non-semantic factors.
- 13.
In Sect. 5 we explore some of the consequences of dropping the assumption that the domain is fixed once and for all.
- 14.
Dworkin (2006: 9) talks about criterial concepts, but his reconstruction of them is very close to what we have presented as descriptivism.
- 15.
In a recent series of papers David Plunkett and Sundell (2013a, b) and 2014) have assumed the Dworkinian reading of Hart’s approach, characterizing Hart as a descriptivist (a characterization that, as we will explain below, we do not share). For Plunkett and Sundell the disagreement does exist and it is indeed a disagreement about which meaning or which concept should be associated with a given term, so the disagreement, they claim, occurs at a metalinguistic and pragmatic level. However, they reject the claim that the disagreement is not substantive, for it can have substantive ethical, social or economic motivations and substantive consequences. Our position is somewhat germane to Plunkett’s and Sundell’s although we have some divergences. More on this in Sect. 4.
- 16.
See Ramírez-Ludeña (2015) for discussion.
- 17.
See also Moreso (2010).
- 18.
Someone may argue that the phenomenon described here is purely pragmatic, that the botanist interprets the intention of the speaker not to include tomatoes among fruits. It seems to us that the phenomenon is too pervasive, consolidated and conventionalized to be dismissed as a pure case of speaker reference.
- 19.
In Sect. 5. we explore other cases where there is, arguably, some indeterminacy as regards which usages and which contexts of use are relevant and even whether there is a sanctioned usage at all.
- 20.
- 21.
See Dupré (1981).
- 22.
Plunkett and Sundell (2013a) ellaborate on the importance of what they characterize as “pragmatic” considerations. We prefer to reserve the word “pragmatics” to cases where an expression with an established meaning is used non-conventionally. In the cases discussed here the dispute turns on a choice between established meanings, and there is no issue here about non-conventionality. The considerations are, certainly, non-semantic and they involve social factors, interests, facts about the context of use, the history of conversations and exchanges, etc.
- 23.
It should be noted also that Plunkett and Sundell, hypothesize that their position is compatible with non-descriptivism (Plunkett and Sundell 2013b: 26ff.).
- 24.
Secretariat was number 35, appearing under the category of horse racing, beating Bill Shoemaker (number 57) and Eddie Arcaro (number 66) both Hall of Fame jockeys and also under the category of horse racing. There were two other non-humans in the ESPN list, both racing horses: Man o’War (number 84) and Citation (number 97)
- 25.
We discuss now some of the consequences of dropping that assumption, as promised in Sect. 2 and footnote 10.
- 26.
The ‘Madagascar’ case was presented as a problem for NTR in (Evans 1973). Michael Devitt has often pointed out that instead of a problem, the ‘Madagascar’ case is a confirmation of NTR, for it shows that there was a new grounding of reference in an object that originated a new chain of communication.
- 27.
See Epstein (2015) for an argument against the authority of a judge to establish meaning.
- 28.
Although we can imagine circumstances in which the issue may legitimately arise, if tomatoes were gradually modified to include synthetic elements.
- 29.
We think that our discussion here goes along lines that would be acceptable to Punkett and Sundell, although they do not discuss in detail some of the cases brought up here.
- 30.
Nevertheless, the vast majority of cases are not indeterminate and hence they “do not require . . . a fresh judgment from case to case” (Hart 1961, 2nd ed. 1994: 135).
- 31.
We are grateful to J. M. Vilajosana and Diego Papayannis for comments to a previous version of this paper. Our research has been partly supported by projects DER2013-48066-C21R, FFI 2015-70707P and CSD2009-00056 of the Spanish Ministry of Science, DIAPHORA (H2020-MSCA-ITN-2015-675415), as well as 2014SGR-626 and 2014SGR-81 of the AGAUR (Generalitat de Catalunya). Versions of this paper were read at the Bielefeld Conference on Natural Kinds and at the Matera Conference on Realism and Objectivity (September 2015). We thank the audiences for helpful discussions.
References
Almog, J. (1984). Semantic anthropology. Midwest Studies in Philosophy, 9, 479–489.
Bix, B. (1993). Law, language and legal determinacy. Oxford: Clarendon.
Devitt, M. (1981). Designation. New York: Columbia University Press.
Devitt, M., & Sterelny, K. (1999). Language and reality, mass. Cambridge: MIT Press.
Donnellan, K. (1970). Proper names and identifying descriptions. Synthese, 21, 335–358.
Dupré, J. (1981). Natural kinds and biological taxa. The Philosophical Review, 90, 66–90.
Dworkin, R. (1986). Law’s empire. Oxford: Hart Publishing.
Dworkin, R. (2006). Justice in Robes. Cambridge, MA: Harvard University Press.
Epstein, B. (2015). What Alabama’s Roy Moore got right. The New York Times, 16 Feb. Available at http://opinionator.blogs.nytimes.com/2015/02/16/what-alabamas-roy-moore-gets-right/
Evans, G. (1973). The causal theory of names. Proceedings of the Aristotelian Society, 47, 187–208.
Frege, G. (1892). Über Sinn und Bedeutung. Zeitschrift für Philosophie und philosophische Kritik 100, 25–50. Translated as On Sense and Reference (by M. Black). In P. Geach, & M. Black (Eds.), Translations from the philosophical writings of Gottlob Frege. Blackwell: Oxford, 2nd ed. 1960.
Hart, H. L. A. (1994). The concept of law (2nd ed.). Oxford: Oxford Clarendon Press.
Jackman, H. (1999). We live forwards but understand backwards: Linguistic practices and future behavior. Pacific Philosophical Quarterly, 80, 157–177.
Kripke, S. (1980). Naming and necessity. Cambridge, MA: Harvard University Press.
Lewis, D. (1969). Convention. A philosophical study. Oxford: Basil Blackwell.
Ludlow, P. (2008). Cheap contextualism. Philosophical Issues, 18, 104–129.
Marcus, R.B. (1985/1986). Possibilia and possible worlds. Grazer Philosophische Studien 25–26 (1985/1986), 107–133. Reprinted in Marcus 1993, 189–214.
Marcus, R. B. (1993). Modalities. New York: Oxford University Press.
Marmor, A. (2005). Interpretation and legal theory: Revised second edition. Oxford: Hart Publishing.
Marmor, A. (2009). Social conventions. From language to law (Princeton Monographs in Philosophy). Princeton: Princeton University Press.
Mill, J. S. (1843). A system of logic. London: Harrison and Co. Printers.
Moore, M. (1985). A natural law theory of interpretation. Southern California Law Review, 58, 277–398.
Moreso, J. J. (2010). Tomates, hongos y significado jurídico. In J. J. Moreso et al. (Eds.), Los desacuerdos en el derecho (pp. 15–47). Madrid: Fundación coloquio jurídico europeo.
Patterson, D. (1989a). Realist semantics and legal theory. The Canadian Journal of Law and Jurisprudence, 2, 175–179.
Patterson, D. (1989b). What was realism? A reply to David Brink. The Canadian Journal of Law and Jurisprudence, 2, 193–195.
Phillips, I. (2014). Cetacean semantics. Analysis, 74(3), 379–382.
Plunkett, D., & Sundell, T. (2013a). Dworkin’s interpretivism and the pragmatics of legal disputes. Legal Theory, 19, 242–281.
Plunkett, D., & Sundell, T. (2013b). Disagreement and the semantics of normative and evaluative terms. Philosophers Imprint, 13, 1–37.
Plunkett, D., & Sundell, T. (2014). Antipositivist arguments from legal thought and talk. The metalinguistic response. In G. Hubb & D. Lind (Eds.), Pragmatism, law, and language (pp. 56–75). London: Routledge.
Putnam, H. (1975). The meaning of “Meaning”, philosophical papers, vol. 2: mind, language, and reality. Cambridge: Cambridge University Press.
Ramírez-Ludeña, L. (2015). Diferencias y deferencia. Madrid: Marcial Pons.
Russell, B. 1910–1911. Knowledge by acquaintance and knowledge by description. Proceedings of the Aristotelian Society, 11, 108–128.
Sainsbury, M. (2014). Fishy business. Analysis, 74(1), 3–5.
Searle, J. (1958). Proper names. Mind, 67, 166–173.
Shapiro, S. (2007). The Hart-Dworkin debate: A short guide for the perplexed. In A. Ripstein (Ed.), Ronald Dworkin (pp. 22–55). New York: Cambridge University Press.
Vilajosana, J. M. (2010). El derecho en acción. Barcelona/Madrid: Marcial Pons.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2016 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Martí, G., Ramírez-Ludeña, L. (2016). Legal Disagreements and Theories of Reference. In: Capone, A., Poggi, F. (eds) Pragmatics and Law. Perspectives in Pragmatics, Philosophy & Psychology, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-30385-7_6
Download citation
DOI: https://doi.org/10.1007/978-3-319-30385-7_6
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-30383-3
Online ISBN: 978-3-319-30385-7
eBook Packages: Social SciencesSocial Sciences (R0)